State v. Morrill

Joseph
A. Foster, attorney general (Danielle E. Horgan, assistant
attorney general, on the brief and orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of
Concord, on the brief and orally, for the defendant.

LYNN,
J.

The
defendant, Jessica Morrill, appeals her conviction, following
a jury trial in Superior Court (Delker, J.), on
three counts of possession of a controlled drug (oxycodone,
alprazolam, and lisdexamfetamine), and one count of
possession of a controlled drug with intent to sell or
distribute (cocaine). See RSA 318-B:2, I (2011). On
appeal, she argues that the trial court erred by denying her
motion to suppress evidence seized during a stop for a motor
vehicle violation, and by denying her motion to dismiss the
possession with intent to sell or distribute charge at the
close of the State's case at trial. We reverse and
remand.

I.
Background

We
accept the trial court's findings where supported by the
record of the suppression hearing. See State v. Roy,
167 N.H. 276, 282 (2015). For the purpose of determining the
sufficiency of the evidence, we also consider facts adduced
at trial. See State v. Rodney Portigue, 125 N.H.
352, 355 (1984). The following facts are relevant to our
analysis. Shortly before midnight on December 31, 2013, State
Trooper McAulay observed a van traveling north on Interstate
Route 95. After a computer license plate check indicated that
the van's license plate was registered to a different
vehicle, McAulay activated his emergency blue lights. The van
travelled "an unusually long distance"-
approximately one-eighth of a mile-before stopping. The trial
court noted that, according to McAulay's testimony, based
upon his training and experience, such a delay "can be
indicative of an occupant in the car trying to hide
something."

When he
approached the passenger side of the vehicle, McAulay
observed an adult male in the driver seat and an adult female
in the front passenger seat. He also observed three young
children in the back of the van: one restrained in a car
seat, one wearing a seatbelt, and the third lying down on a
bench seat and covered with blankets. According to McAulay,
the children were underdressed for the cold weather, and it
appeared as though they had been "thrown in the
back" of the van.

McAulay
illuminated the cabin with a flashlight and requested the
driver's license and the vehicle's registration
paperwork. The driver, Jason Millett, produced a valid
driver's license and the van's registration. The
registration paperwork indicated that the van was recently
registered to the adult female passenger, later identified as
the defendant.

McAulay
asked Millett from where they had been traveling. Millett
replied that they had been visiting the defendant's
friend in Massachusetts, but could not recall the name of the
town. Millett stated that the town's name began with the
letter W, and tried to pronounce the town's name in an
"almost stuttering" fashion. The defendant did not
interject, but, rather, kept looking forward. Although
Millett looked at McAulay when handing over his license and
the registration, he looked forward the remainder of the
time. Millett appeared to be unusually nervous; he was
"jittery" and "shaking uncontrollably."
After reviewing the documentation Millett provided, McAulay
asked why the children were not properly restrained. McAulay
could not remember precisely how the defendant and Millett
responded, but he testified that they could not explain why
the children were not properly restrained.

McAulay
then returned to his cruiser, where he spoke with Sergeant
Cooper who had arrived on scene. McAulay, according to his
testimony, "felt there was a lot more to the story than
[Millett and the defendant] were putting on." He
testified that he suspected the defendant and Millett had
been, were, or were about to become engaged in criminal
activity, but that he "didn't know at that
point" what that might be.

When he
returned to the van, McAulay asked Millett to step outside
and speak with him. Millett complied.

Outside
the van, Millett repeatedly placed his hands in his pockets,
despite McAulay's request that he refrain from doing so.
McAulay asked Millett whether he was carrying any weapons,
and Millett replied in the negative. A pat frisk confirmed
that Millett had responded truthfully. However, Millett
continued to appear "very nervous" and paced back
and forth. He also paused and looked away from McAulay before
answering questions. McAulay questioned Millett about where
they had been. Millett again stated that they had come from a
town in Massachusetts, and that the town's name began
with the letter W. McAulay asked whether he meant Worcester,
and Millett replied that Worcester "sounded right."
In response to McAulay's questioning regarding the
family's travel itinerary, Millett stated that the family
had left Maine at approximately 2:00 p.m. that day and had
visited the defendant's friend. At that time, McAulay
asked if there were "any drugs or any illegal
items" in the van. Millett replied that there were not.

In the
meantime, Cooper spoke with the defendant. The defendant
reported a different itinerary to Cooper than Millett had
provided to McAulay. Cooper then informed McAulay of the
defendant's version, and McAulay questioned Millett about
inconsistencies between Millett's and the defendant's
stories. Unable to explain the inconsistencies, Millett
became increasingly nervous and adopted a "fight or
flight" stance.

McAulay
then requested Millett's consent to search the van.
Millett refused. McAulay thereafter informed Millett of his
right to refuse consent. He also requested a canine unit to
perform a sniff of the vehicle, and told Millett that he
planned to apply for a search warrant if the dog signaled
that the vehicle contained contraband. At this point, Millett
verbally consented to the search, and subsequently executed a
"consent to search" form. A search of the van
revealed, among other things, oxycodone, alprazolam,
lisdexamfetamine, and cocaine. Millett and the defendant were
arrested.

Prior
to their respective trials, both Millett and the defendant
moved to suppress the evidence obtained from McAulay's
search of the van. The trial court consolidated the two cases
for a suppression hearing, and, after ...

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